Citation Nr: 9837036
Decision Date: 12/18/98 Archive Date: 12/30/98
DOCKET NO. 95-00 792 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an increased (compensable) disability
evaluation for residuals of a thoracic spine injury.
2. Entitlement to an increased (compensable) disability
evaluation for residuals of a right knee injury.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Engle, Counsel
INTRODUCTION
The appellant served on active duty from September 1983 to
May 1993.
This case returns to the Board of Veterans’ Appeals (Board)
from a remand dated in June 1997. The requested development
has been completed to the extent possible and the case
returned for appellate consideration. This appeal originates
from a decision dated in January 1994, by the North Little
Rock, Arkansas, Department of Veterans Affairs (VA) Regional
Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that his thoracic spine
disability and right knee disability are of such severity as
to warrant compensable disability evaluations. He has argued
that he has intermittent pain in his back and knees and that
he has difficulty driving because of the pain. He further
contends that he has difficulty walking and cannot sleep at
night due to the pain and that if he stands too long his knee
hurts.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a preponderance of the
evidence is against the appellant’s claims to compensable
disability evaluations for residuals of a thoracic spine
injury and residuals of a right knee injury.
FINDINGS OF FACT
1. The appellant’s residuals of a thoracic spine injury are
manifested by complaints of mid-level back pain with
radiation to the right shoulder and are not shown to be
productive of any limitation of motion of the thoracic
spine or other objective functional impairment on physical
examination.
2. The appellant’s residuals of a right knee injury are
manifested by complaints of right knee pain after standing
or driving for extended periods with occasional swelling
and are not shown to be productive of any limitation of
knee motion or other objective functional impairment on
physical examination.
CONCLUSIONS OF LAW
1. The schedular criteria for a compensable disability
evaluation for residuals of a thoracic spine injury are
not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, Diagnostic Codes
5299-5291 (1998).
2. The schedular criteria for a compensable disability
evaluation for residuals of a right knee injury are not
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, Diagnostic Codes
5299-5257 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the appellant’s claims for
increased disability evaluations are well grounded within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). Specifically,
he has alleged that his service-connected disabilities are
more severe than currently indicated by the noncompensable
disability evaluations and he has appealed the RO’s initial
assignment of the ratings for these disabilities. Pursuant
to Shipwash v. Brown, 8 Vet. App. 218, 224 (1995), the claim
for an increased rating continues to be well grounded as long
as the rating schedule provides for a higher rating and the
claim remains open. See also AB v. Brown, 6 Vet. App. 35
(1993).
Service-connected disabilities are rated in accordance with a
schedule of rating disabilities based on average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. Schedule for Rating Disabilities
(Schedule), 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4
(1998). The disability ratings evaluate the ability of the
body to function as a whole under the ordinary conditions of
daily life including employment. As such, the ratings take
into account such factors as pain, discomfort, and weakness
in the individual rating. 38 C.F.R. §§ 4.10, 4.59 (1998).
Evaluations are based on the amount of functional impairment;
that is, the lack of usefulness of the rated part or system
in self support of the individual. 38 C.F.R. § 4.10 (1998).
When a disability is encountered that is not listed in the
rating schedule it is permissible to rate under a closely
related disease or injury in which the functions affected,
the anatomical location and the symptomatology are closely
analogous to the condition actually suffered from. 38 C.F.R.
§ 4.20 (1998).
While the regulations require review of the recorded history
of a disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the present
level of the veteran’s disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Factual Background
The record reflects that in January 1994, the RO granted
service connection for residuals of a thoracic spine injury
and for residuals of a right knee injury. Noncompensable
disability evaluations were assigned for each disorder
effective from May 9th, 1993. The rating board noted that
the appellant had injured his back on three occasions during
service and that he reported pain beneath the right shoulder
blade on VA examination in October 1993. However, physical
examination at that time revealed no abnormalities and x-ray
examination was normal. With regard to the right knee
disorder, it was noted that the appellant had sustained
several twisting injuries to the knee during service. It was
further noted that he wore a brace while running and that
physical examination in October 1993, revealed no right knee
pathology and x-ray examination was normal.
VA outpatient treatment reports dated in August 1994, reflect
that the appellant was seen for complaints of “back
problems.” No significant findings were reported and the
assessment was musculoskeletal back pain.
In December 1994, the appellant offered testimony at a
hearing before a Hearing Officer in support of his claims.
He testified that he had a steady pain in the middle of his
back which radiated to his right shoulder and up into his
neck. He stated that sitting for extended periods of time
caused neck and shoulder pain and that he used over-the-
counter medications such as Ben-Gay and a heating pad for the
pain. With respect to his right knee, he reported that if he
stood too long he experienced pain and that he had occasional
swelling. He further noted that the knee gave-way on several
occasions while he was running. He indicated that due to his
knee and back pain he discontinued exercising and that his
back pain interfered with his sleep. However, he noted that
neither the back nor his right knee caused any problems at
work.
In June 1997, the Board remanded these issues to have the
appellant examined in an effort to further evaluate the
current nature and severity of his thoracic spine and right
knee disabilities. The Board concluded that the record, as
it stood in June 1997, did not provide an adequate basis upon
which to evaluate level of severity of these disabilities.
In March 1998, the appellant was scheduled for a VA
examination at the North Little Rock VA Medical Center.
Documentation within the claims folder reflects that the
notice of the examination was sent to the appellant’s address
of record. However, the appellant failed to report for the
scheduled examinations. There has been no additional
communication with the appellant since that time with respect
to any possible “good cause” for his failure to report for
the examination.
Pursuant to 38 C.F.R. § 3.655, when entitlement or continued
entitlement to a benefit cannot be established or confirmed
without a current VA examination or reexamination and a
claimant, without good cause, fails to report for such
examination, or reexamination, action shall be taken in
accordance with paragraph (b) or (c) of this section as
appropriate. Paragraph (b) provides that when a claimant
fails to report for an examination scheduled in conjunction
with an original compensation claim, the claim shall be rated
based on the evidence of record.
In this case, the Board concluded that the record was
inadequate to properly evaluate the nature and severity of
the appellant’s service-connected back and knee disorders.
However, in view of the above and the appellant’s failure to
cooperate with respect to reporting for examination, the
Board will proceed and adjudicate his claims based on the
evidence of record.
In this respect, the Board notes that review of the
appellant’s claim requires the Board to provide a written
statement of the reasons or bases for its findings and
conclusions on material issues of fact and law. 38 U.S.C.A.
§ 7104(d)(1) (West 1991). The statement must be adequate to
enable a claimant to understand the precise basis for the
Board’s decision, as well as to facilitate review by the
United States Court of Veterans Appeals (the Court). See
Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Masors v.
Derwinski, 2 Vet. App. 181, 188 (1992). To comply with this
requirement, the Board must analyze the credibility and
probative value of the evidence, account for evidence which
it finds to be persuasive or unpersuasive, and provide
reasons for rejecting any evidence favorable to the
appellant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In
addition, as the Court has pointed out, the Board may not
base a decision on its own unsubstantiated medical
conclusions but, rather, may reach a medical conclusion only
on the basis of independent medical evidence in the record or
adequate quotation from recognized medical treatises. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Moreover, the Board has the duty to assess the credibility
and weight to be given to the evidence. See Madden v. Gober,
125 F.3d 1477 (Fed. Cir. 1997) and cases cited therein. Once
the evidence is assembled, the Secretary is responsible for
determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
Thoracic Spine
The appellant’s back disability is currently rated under
Diagnostic Code 5291 which provides for evaluation based upon
limitation of dorsal (thoracic) spine motion. Where there is
a slight limitation of motion, a noncompensable disability
evaluation is in order. Where the record documents either a
moderate or severe limitation of dorsal spine motion, a 10
percent disability evaluation is warranted. When viewed in
light of the evidence of record, the Board must conclude that
the presence of either a moderate or severe limitation of
dorsal spine motion has not been shown. In fact, on VA
examination in October 1993, the appellant’s thoracic spine
was found to be normal and x-ray examination revealed no bony
pathology. While the appellant has reported various symptoms
including constant pain in the middle of his back, he further
testified that his back did not cause any problems at work.
In weighing this evidence, the Board finds the appellant’s
equivocal assertions regarding the severity of his thoracic
spine disorder, the reports of constant pain on one hand
versus no functional impairment at work on the other, to be
outweighed by the medical evidence of record which documents
no objective thoracic spine pathology.
Accordingly, in the absence of any additional evidence to
support the presence of compensable thoracic spine
symptomatology, entitlement to a compensable disability
evaluation for residuals of a thoracic spine disorder is not
warranted.
Right Knee
The appellant’s right knee disorder is evaluated pursuant to
Diagnostic Code 5257 which provides that slight impairment of
the knee with recurrent subluxation or lateral instability
warrants a 10 percent disability evaluation. A moderate knee
impairment warrants a 20 percent disability evaluation and a
severe impairment warrants a 30 percent disability
evaluation.
After review of the evidence of record, the undersigned finds
that entitlement to a compensable disability evaluation for
residuals of a right knee injury is not warranted. As noted
above, the appellant’s contentions and testimony regarding
the nature and severity of his knee disability have been
carefully considered; however, these equivocal assertions are
found to be outweighed by the objective medical evidence of
record. The absence of any identifiable limitation of knee
motion or knee pathology on physical examination to include
x-ray examination is deemed to be of greater probative value
than the appellant’s statements offered in support of his
claim. Significantly, the appellant testified in December
1994, that his knee disorder did not cause any problems at
work. The appellant’s contentions alone, without some form
of objective corroboration are found to be of insufficient
probative value to serve as the basis for a compensable
disability evaluation when viewed in light of the record as a
whole.
Accordingly, entitlement to an increased disability
evaluation for residuals of a right knee injury has not been
shown.
Other Considerations
In evaluating the appellant’s claims, the Board has
considered all potentially applicable Diagnostic Codes.
However, when evaluated in light of the appellant’s
symptomatology, the Codes noted above have been found to be
the most appropriate.
The Board further notes that the preponderance of the
evidence is against the appellant’s claims and as such, the
evidence in his favor does not approximate the evidence
against his claims. Accordingly, the benefit of the doubt
doctrine is not for application. 38 U.S.C.A. § 5107(b) (West
1991).
ORDER
The appeal is denied.
CHRISTOPHER P. KISSEL
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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